Court of Appeals of Wisconsin. On behalf of the defendant-appellant, the cause was submitted on the briefs of William E. Schmaal, assistant state public defender. On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Sandra L. Nowack, assistant attorney general. Alan Radke appeals from a judgment of conviction for a repeated sexual assault of the same child.
Because Radke had been convicted previously of another child sexual assault, the circuit court sentenced him to life in prison without parole, as required by Wis. Radke argues that the sentencing scheme is a violation of substantive due process and is therefore unconstitutional. Because we conclude that the two-strikes law is constitutional as applied to Radke, we affirm.
In addition, because Radke had been previously convicted of first-degree sexual assault of a child under Wis. The circuit court denied the motion, and a jury trial ensued. The circuit court denied Radke's motion for postconviction relief, and Radke appeals. Act , are unconstitutional on their face. This is a question of law that we review de novo. Therefore, if the law is constitutional as applied to Radke, the law is not unconstitutional on its face. Further, Radke must overcome the statute's presumption of constitutionality and demonstrate that the provisions are unconstitutional beyond a reasonable doubt before we may invalidate them.
See Safe Water Ass'n v. City of Fond du Lac, Wis. The actor has been convicted of a serious child sex offense on at least one occasion at any time preceding the date of violation of the serious child sex offense for which he or she presently is being sentenced under ch.
Radke does not argue for a heightened standard of review, so this is the standard that we apply. Undoubtedly, however, at least one of the purposes behind the act was the same as other statutes involving sexual offenders: There is no question that protecting children from harm is a legitimate purpose.
See Amy Rinard, Life term for child sex crimes advances, Milw. We may consider these statements in determining the purpose of a statute. See State Public Defender v. Act does not contain any legislative findings supporting a view that sex offenders have high recidivism rates, this is not necessarily required. See United States v. Hahn, WI , Wis. We cannot conclude that it would be irrational to believe that an individual who has committed two sexual assaults against a child is likely to do so again and unlikely to be rehabilitated.
City of Kenosha, Wis. At issue is the validity of a sentencing scheme, not a grooming code. We agree with Radke, however, that the methodology the Peppies court used in analyzing the substantive due process issue provides Radke some support.
On its face at least, substantial relation appears more demanding than rational relation. Under this test, a statute is not necessarily unconstitutional if the legislature has failed to support its conclusions. To the extent that Peppies is inconsistent with subsequent decisions by the supreme court, it is those decisions that we must follow.
Specifically, Radke argues that the law encourages second-time offenders to kill their victims in addition to sexually assaulting them so that the child is prevented from later testifying. This same objection was made by the law's opponents in the legislature before it was passed, 11 who also argued that the law prevents judges from making an individualized determination regarding sentencing in situations where life in prison may not be an appropriate sentence, 12 and that it could make it more difficult for prosecutors to convict first-time offenders because they will be less likely to make plea agreements.
That the law might have negative side effects does not make it unconstitutional. The legislature could rationally conclude that the economic, social and legal costs of allowing individualized sentencing determinations of recidivist child sex offenders were greater than those involved with eliminating sentencing discretion and parole for those crimes upon a second conviction.
We have concluded, with respect to the crimes for which Radke was convicted, that the two-strikes law is. Radke does not point to any Wisconsin or Supreme Court authority suggesting a statute violates substantive due process when it is inconsistent with other statutes. Rather, Radke's argument is essentially one of equal protection.
In Asfoor, the supreme court held that the penalty provision of Wis. Radke's challenge of Wis. See also State v. Equal protection applies when a statute treats differently those that are similarly situated. Wisconsin Prof'l Police Ass'n v.
Radke is challenging the way the legislature has classified two groups of criminal defendants with respect to mandatory sentencing rules. Generally, differences in the treatment of criminal offenders are reviewed under a rational basis test. Because the nature of the crimes was essentially the same, there was no rational basis for imposing a greater penalty on the crime that was essentially a lesser included offense of the other.
Although retribution may have been one motivating factor the legislature had in enacting the two-strikes law, 15 as discussed above, the legislature was also likely motivated by a desire to protect children from reoffenders. Although the issue can be debated, the legislature could have rationally concluded that those who have committed child sexual assaults are more likely to continue to reoffend after they are released than are those who have committed non-sexual violent crimes.
Specifically, he contends that Wis. Johnson, WI 52, Wis. All references to the Wisconsin Statutes are to the version unless otherwise noted. The substance of Wis. Whoever does any of the following is guilty of a Class B felony: In contrast to prior convictions under Wis. The Fourteenth Amendment provides in relevant part: See also Peppies Courtesy Cab Co. The State relies on an article, written after Wis. Ex post facto explanations from legislators, however, cannot be relied on to determine legislative intent.
Although studies have come to varying conclusions, there is at least some evidence supporting the view that child sex offenders, particularly those with prior convictions, have a high recidivist rate. Interpersonal Violence 85 concluding that reoffense rate for child molesters with prior convictions is relatively high ; R. Despite the uncertainty in this area, based on the importance of the interest in protecting potential victims from sexual assault, we cannot conclude that the legislature acted irrationally when it chose to err on the side of protecting the public in lieu of permitting circuit courts to make individualized determinations regarding sentencing.
Radke does not argue that the two-strikes law inflicts cruel and unusual punishment, so we do not address that issue. However, see State v. See Mike Flaherty, Measure puts repeat sex offenders in prison for life, Wis. See Lawrence Sussman, Sex crimes bill flawed, Milw.
Representative Glenn Grothman worried that the law could be applied to a sixteen-year-old boy who had consensual sex with two fifteen-year-old girls. Radke does not argue that a statute which takes all sentencing discretion away from the circuit court violates the doctrine of separation of powers.
However, compare State v. A statute that attempted [to take this power away] would quite likely have to be held unconstitutional. Therefore, the two-strikes law cannot be applied to this conduct. Radke argues only that it is irrational to inflict a more severe penalty on Class B felons than on Class A felons.
He does not argue that it is irrational to prescribe a harsher penalty for one group of Class B felons than for another group of Class B felons.